F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2020-2021) – fifa.com – atto non ufficiale – Decision 23 March 2021

Decision of the

Players' Status Committee

passed on 23 March 2021

regarding a contractual dispute concerning the player Mathew Boniface

BY:

Vitus Derungs (Switzerland), Single Judge of the PSC

CLAIMANT:

Aris Limassol, Cyprus

Represented by Mr Christoforos F. Florou

RESPONDENT:

KF Trepca 89, Kosovo

Represented by Mr Lorin Burba

I. FACTS OF THE CASE

1. On 26 March 2020, the Dispute Resolution Chamber of FIFA passed a decision (ref. 18-00990), in which it ordered the Respondent as well as the player Mathew Boniface (jointly and severally liable) to pay an amount of EUR 43,900, as well as 5% interest p.a. as from 18 May 2018 until the date of effective payment, to the Claimant.

2. On an unspecified date, the Claimant opened a claim before the Disciplinary Committee of FIFA under number FDD-6056, however said claim was closed because of the settlement agreement concluded on 31 October 2020.

3. Based on said settlement agreement, the Claimant and the Respondent signed a settlement agreement, based on which the total amount of EUR 49,259.47 (consisting of the amount of EUR 43,900, plus 5% interest p.a. as from 18 May 2018 between 31 October 2020) would be paid as follows:

 EUR 25,000 on the date of ‘signature of the agreement’;

 EUR 24,259.47 on 15 January 2021.

4. Furthermore, clause 4 of the settlement agreement stipulates the following:

‘If any of the instalments stipulated is not fully paid to the club ARIS on the relevant date, with a maximum of 14-day grace period on each instalment, this Agreement shall automatically terminate without the need of prior warning or notice and the club ARIS shall be entitled to claim the outstanding amount plus interest 5% interest per annum until the full payment of the amount from the club KF TREPCA.

In such case, the club ARIS will be entitled to claim from the club KF TREPCA the additional amount of EUR 10,000 (Euro Ten Thousand) for the breach of the terms and conditions of this agreement not compliance of the club KF TREPCA’.

5. On 11 January 2021, the Claimant put the Respondent in default for the payment of the amount of EUR 59,259.47, as well as 5% interest p.a. as from 31 October 2020, providing a 10 days’ deadline to remedy the default, however to no avail.

II. PROCEEDINGS BEFORE FIFA

1. On 27 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

2. According to the Claimant, the Respondent did not made any payments and that therefore the whole settlement amount, as well as an additional penalty of EUR 10,000 is immediately payable.

3. The requests for relief of the Claimant, were the following:

- the payment of the amount of EUR 59.259.47, consisting of the settlement amount of EUR 49,259.47;

- the payment of a penalty of EUR 10,000, plus 5% interest p.a. as from 31 October 2020;

- the imposition of sporting sanctions on the Respondent;

- the payment of legal costs of CHF 2,000 and procedural costs.

b. Position of the Respondent

6. According to the Respondent, it indeed concluded a settlement agreement as per the terms described by the Claimant, but also pointed out that on 31 October 2020, the day it signed the settlement agreement, it already paid an amount of EUR 25,000.

7. Moreover, the Respondent explains that on 1 November 2020, ‘the Claimant confirmed to the Respondent that it would notify the signed version of the settlement agreement upon the clearance of the amount of EUR 25,000.00 by its respective bank, with this condition having never been included in the draft of the settlement agreement prepared by the own Claimant.’

8. Moreover, allegedly on 5 November 2020, the Claimant informed the Respondent that the payment of the amount of EUR 25,000 was rejected by the Central Bank of Cyprus, due to ‘the non-recognition of Kosovo as an independent state by the Republic of Cyprus’.

9. Based on the foregoing, the Respondent deems that it cannot be held liable for the payment of the penalty of EUR 10,000 and/or other sanctions, as it did everything in its power to duly make the relevant payments, but that the payment was refused by the private sector, i.e. the Central Bank of Cyprus. The Respondent argues that said circumstance can be considered as a force majeure.

10. Finally, the Respondent pointed out that also the payment of the amount of EUR 49,259.47 has become impossible, ‘due to an impediment outside the sphere of control of this party’.

11. The requests for relief of the Respondent were the following:

- The rejection of the claim of the Claimant.

III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PSC

a. Competence and applicable legal framework

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 23 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with matters which disputes between clubs belonging to different associations.

3. In continuation, the Single Judge of the PSC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 27 January 2021, the January 2021 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

b. Burden of proof

4. The Single Judge of the PSC recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge of the PSC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

5. In this respect, the Single Judge of the PSC also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

6. The competence of the Single Judge of the PSC and the applicable regulations having been established, the Single Judge of the PSC entered into the merits of the dispute. In this respect, the Single Judge of the PSC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge of the PSC emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

7. The foregoing having been established, the Single Judge of the PSC moved to the substance of the matter, and took note of the fact that the parties strongly dispute whether or not the Respondent can be held liable for the non-fulfilment of the financial obligations as laid down in the settlement agreement signed between the parties.

8. In this context, the Single Judge of the PSC acknowledged that it his task was to determine whether or not the Respondent ad brought forward valid arguments that could lead to the conclusion that it cannot be held liable for the non-fulfilment of the financial obligations, as well as the payment of a penalty that fell due because of the foregoing circumstance.

9. The Single Judge of the PSC noted from the contents of the settlement agreement that the parties had clearly agreed upon the fact that the Respondent was liable to make a payment of EUR 49,259.47 by means of two instalments: the first instalment of EUR 25,000 fell due on 31 October 2020, the date the termination agreement was signed, and the second instalment of EUR 24,259.47 fell due on 15 January 2021.

10. Moreover, the Single Judge noted that from the contents of art. 4 of the settlement agreement, it could be concluded that a penalty of EUR 10,000 would fall due in case of non-timely payment any of the abovementioned instalments.

11. From the information on file, the Single Judge noted that the amount of EUR 25,000, which fell due on 31 October 2020, remained unpaid, according to the Respondent due to the fact that the local bank in Cyprus refused said payment as it was made form a bank account in Kosovo. The Single Judge of the PSC was however of the opinion that said circumstance cannot be qualified as a situation of force majeure, due to the fact that it was not impossible to foresee issues in the transferring of monies between two countries on the forehand. Moreover, also afterwards, the Respondent could have also explored other ways to pay the relevant amounts due, in order to mitigate the financial consequences.

12. As a consequence, the Single Judge concluded that based on the acceleration clause in art. 4 of the settlement agreement, on 31 October 2020, the total amount of EUR 49,259.47, as well as a penalty in the amount of EUR 10,000, fell due.

13. In conclusion, the Single Judge of the PSC concluded that the Respondent is obliged to pay to the Claimant the outstanding amount of EUR 49,259.47, as per the settlement agreement.

14. What is more, in line with the well-established jurisprudence of the DRC and PSC, the Single Judge of the PSC also decided to award 5% interest p.a. on said amount as from 1 November 2020.

15. Finally, the Single Judge also concluded that – based on art. 4 of the settlement agreement, a penalty in the amount of EUR 10,000 had to be paid by the Respondent to the Claimant, but that no interest shall be applied on said penalty.

ii. Consequences

16. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified failure to comply with its financial obligations.

iii. Compliance with monetary decisions

17. Finally, taking into account the consideration under number 13, 14. and 15. above, the Single Judge of the PSC referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

18. In this regard, the Single Judge of the PSC highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

19. Therefore, bearing in mind the above, the Single Judge of the PSC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.

20. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Registration Form, which is attached to the present decision.

21. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of the Regulations.

d. Costs

22. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players´ Status Committee, including its Single Judge, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties´ degree of success in the proceedings and are normally to be paid by the unsuccessful party.

23. In this regard, the Single Judge underlined that failure to fulfil with the terms established in the agreement can be attributed to the Respondent and that the claim was for the major part accepted, the Single Judge concluded that the Respondent had to bear the costs of the current proceedings before FIFA.

24. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. The amount in dispute to be taken into consideration in the present proceedings is of EUR 59,259.47. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

25. In conclusion, and in view of the specific circumstances of the present matter, the Single Judge determined the costs of the current proceeding to the amount of CHF 5,000. In conclusion, the Single Judge decided that the amount of CHF 5,000 has to be paid by the Respondent to cover the costs of the present proceedings.

26. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

IV. DECISION OF THE Players' Status Committee

1. The claim of the Claimant, Aris Limassol, is partially accepted.

2. The Respondent, KF Trepca 89, has to pay to the Claimant, the following amount:

- EUR 49,257.47 as outstanding remuneration plus 5% interest p.a. as from 1 November 2020 until the date of effective payment;

- EUR 10,000 as penalty fee.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment (including all applicable interest) is not paid within 45 days of notification of this decision, the following consequences shall apply:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration the ban shall be of three entire and consecutive registration periods. 2.

The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not paid by the end of the of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer of Players.

7. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Respondent to FIFA (cf. note relating to the payment of the procedural costs below).

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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